5 Things Everyone Should Know About Copyright and Open Access

Nov 17th, 2010 | By | Category: Digital Humanities, Digital Pedagogy

To mark Open Access week, on Thursday, October 21, Georgia Tech’s Library and Information Center sponsored a panel, “Expanding the Reach of Your Research: An Open Forum on Authorship and Your Intellectual Property.” Evans Harrell (School of Sciences, Mathematics) facilitated, and TyAnna Herrington (Literature, Communication and Culture), Steve Harvey (School of Biology), and Aaron Bobick (School of Interactive Computing) from the faculty spoke, with Joe Beck of Kilpatrick Stockton LLP as a guest presenter. Even though I am a staunch advocate of Open Access, I might not have gone except for the fact that I used to work with Joe Beck and thought it might be a good chance to catch up with him. It’s not that I didn’t think the panel would provide useful information. It’s just that staying on campus until 6:00 pm means that I miss my youngest daughter’s bedtime, and I didn’t really expect to hear much I hadn’t heard before. I am an intellectual property lawyer, and I consider myself pretty well-versed in copyright, trademark, and patent law, as well as the theory and practice behind the Open Access movement. I ended up being very glad I went. I not only learned a few things that I didn’t know already, I also got a better sense for which of the arguments I’ve heard before in favor of Open Access might resonate most strongly with academics from a diverse array of disciplines. What follows is a redux of the session, organized around what I consider to be five of the most important points made by the presenters.

1. Copyright owners cannot “preempt” the fair use market, or even though someone else paid for a license doesn’t necessarily mean you have to pay for one, too.

Joe Beck, who is currently working as lead counsel for Google in The Author’s Guild, et al. v. Google, Inc. litigation, started off with a presentation that provided a good overview of the history of transformative use in cases where a party raises fair use as a defense to copyright infringement. Significantly, Mr. Beck reminded the audience of the line of cases following Kelly v. Arriba Soft, Corp. in which courts have found that a defendant’s use of the copyrighted work was transformative, even though the work was copied in its entirety. One of the most important principles to come out of that thread of case law was stated most clearly in Bill Graham Archives v. Dorling Kindersley, Ltd.: “[A] copyright holder cannot prevent others from entering fair use markets merely ‘by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work.’” That means that, even where a copyright owner has created a “fair use” market for the copyrighted work by, for example, granting licenses to derivative authors who create parodies or commentaries that use the copyrighted work, the copyright owner cannot use evidence that “fair use” market would be harmed in order to prevent someone from making actual fair use of the copyrighted work.

2. For academics, speech interests are often just as, if not more important than economic incentives in motivating the creation of new intellectual property.

TyAnna Herrington, a professor in the Department of Literature, Communication, and Culture and herself an intellectual property attorney, spoke next. Dr. Herrington has published a number of books on the subject, including Controlling Voices: Intellectual Property, Humanistic Studies, and The Internet and Intellectual Property on Campus: Students’ Rights and Responsibilities. She offered a lucid explanation of the balance U.S. copyright law strikes between authors’ right and users’ rights. In the Intellectual Property Clause, the U.S. Constitution gives Congress the right to make laws granting to authors a limited monopoly—e.g., a copyright or patent—for a limited time over their intellectual property in order “to promote the Progress of Science and useful Arts.” The public interest in creating and maintaining a vibrant and thriving community of innovators is what provides the justification for copyright law in the first instance. The economic incentives created by copyright law benefit the copyright owner in the short term, but the public are supposed to be the ultimate beneficiaries in the long term.

After summarizing how copyright law is supposed to work, Dr. Herrington then turned to questioning whether the economic incentives created by copyright are the only or even the most important factor motivating academic authors. The economic benefits academics receive for producing intellectual property are in the overwhelming majority of cases indirect benefits in the form of promotion, raises, and tenure. These indirect incentives would arguably continue to operate even if we all decided tomorrow to get rid of copyright law. She went on to suggest we consider as well the extent to which academic authors have a personal, as well as financial, interest in the intellectual property we create. This way of thinking about the relationship between authors and their work underlies what intellectual property attorneys call moral rights. Unlike copyright, which is a financial interest that can be alienated, an author’s moral rights arise from the fact her work is like an extension of her person. Moral rights may therefore persist and might be asserted by an author, and in some cases her heirs, even when she has sold or given away the copyright to her work. In addition to pointing out how this personal or reputational interest might play a role in academics’ production of intellectual property, Dr. Herrington also noted that academics often write simply because we see the need to speak, regardless of whether we will receive direct or indirect economic benefit from our speech acts. Consequently, within the academy, a variety of professional and personal interests work in conjunction with, and perhaps even in spite of the economic incentives provided by copyright law to keep the “progress of Science and the useful Arts” humming along.

3. In the wake of the NIH’s implementation of its Public Access Policy, the tide within the publishing industry for scientific journals is turning in favor of Open Access.

the turning of the tide

Photo courtesy of jon smith 'una nos lucror' via Flickr

Steve Harvey, Professor and Georgia Research Alliance Eminent Scholar in Structural Biology, was up next after Dr. Herrington. Although I had heard about the Public Access Policy adopted by the National Institutes of Health in 2008 and the Public Library of Science, I was not familiar with the specific details of how these and other Open Access initiatives have been playing out in the scientific community. Under the NIH’s Public Access Policy, scientists who receive funding for their work from the NIH must ensure that any papers resulting from their funded research are made available on NIH’s PubMed Central no later than 12 months after their initial publication. A number of private funding agencies have implemented similar policies, some of them requiring public accessibility within six months of or even concurrent with journal publication. The Public Library of Science “is a nonprofit organization of scientists and physicians committed to making the world’s scientific and medical literature a freely available public resource” that sponsors seven online, Open Access journals.

In the sciences, Open Access publication is increasingly supported by publication fees. For example, such fees, ranging from $1,350.00 to $2,900, fund publication of the PloS journals. According to Dr. Harvey, traditional journals have adopted a similar strategy. A number of prominent journals now agree to provide Open Access to all papers within 12 months of their initial publication so that publishing authors will be in compliance with their obligations under the NIH policy. For those authors who receive funding from agencies that require Open Access even sooner, these journals charge publication fees. In some cases, the funding agency requiring Open Access will pick up the tab; in others, the publishing authors are responsible for the cost.

In STEM disciplines, where funded research and co-authorship are the norm, this seems to be an acceptable way to share the costs of Open Access. The cost of publication can be folded into the budget for a grant or shared among co-authors. For those of us doing traditional humanities research, however, even a modest publication fee might seem cost-prohibitive. Single-author publication means fewer people to share the expense, and increasing the cost of self-funded research means even less access for graduate students, adjuncts, and postdocs who are already working and living on shoestring budgets. That is why I was particularly intrigued and inspired by the talk Aaron Bobick gave when he took over from Dr. Harvey.

4. Publishers need you more than you need them, or just because something is free, that doesn’t mean it is without value.

Aaron Bobick—Professor and Chair, School of Interactive Computing—led with the observation that quality and rigorous peer review are not inextricably bound up with the traditional academic model of print publication, or even strong copyright controls. He described how computer science has evolved a robust model of peer-reviewed, online publication in the academic conferences. He went on to suggest that review prior to publication is not the only way to control for quality. In support, he cited the recent example of Vinay Deolalikar, a mathematician working at HP Labs, who posted to his personal website a draft of a paper in which he claimed to have proved that P != NP. Within hours of its posting, mathematicians working in the blogosphere began tearing the working proof apart, and the emerging consensus seems to be that, even though Deolalikar may have made some important contributions to thinking about the problem, the proof is flawed. In response to Dr. Bobick’s discussion of Deolalikar’s case, Dr. Harvey and Dr. Harrell noted the Open Access, open publication forum arXiv.org has developed mechanisms of self-correction, similar to those that keep Wikipedia trolls in check, whereby potentially dodgy work is quickly superseded or counterbalanced by the publication of work that calls it into question.

It seems that Milton was right in the Aeropagitica when he argued that post-publication controls can be a perfectly sufficient means of regulating the quality of public discourse. Of course, I do not think moving beyond the traditional model of academic publication requires that we levy fines against or jail “blasphemers” and “charlatans.” What I take away from Milton in light of Bobick’s talk, however, is a reminder that gatekeeping is just one alternative out of many. Rethinking the role copyright should play in academic publishing does not necessarily involve leaving peer review behind as well. While we are at it, though, should we not at least take a second look at the other controls we place on the flow of information? Members of a disciplinary community might work together to create an Open Access framework in which free or relatively inexpensive, peer-reviewed, online journals, and self-publication on blogs and personal webpages both play vital roles in knowledge generation and curation within the discipline. Dr. Harrell observed that a number of Fields Medalists already maintain high-profile blogs (A quick search found What’s New, maintained by 2006 Fields Medalist and UCLA mathematician, Terence Tao), and the panelists seemed to be in agreement that all the alternative model of academic publishing needs is the publication of one Nobel Prize-winning contribution to take it from avant-garde to thoroughly respectable.

Which leads me to Dr. Bobick’s closing point, publishers need us more than we need them. If academics collectively take a stand against draconian enforcement of copyright at all costs, we have leverage because we create and, in many cases, give away for free the content on which the academic publishing industry relies. In addition to supporting Open Access initiatives on our campuses and within our fields of study, we should be more willing to mark up contracts rather than signing them without question, and in some cases, without even reading them. As Mr. Beck noted, all most academic publishers really need is the right of first publication and a non-exclusive license to re-publish in existing and new media. They do not need the whole copyright, which is a bundle of rights that can be parceled out as an author sees fit. At Georgia Tech, the library’s Scholarly Communication and Digital Services staff can provide alternative copyright documents that authors can use in lieu of the standard contracts offered by publishers.

5. “Intellectual Property” is bigger than copyright, patent, and trademark, and it’s not just a legal concept.

I will close with an issue that came up during the Q&A session. A researcher posed a question that required the panel to think about the relationship between how intellectual property is defined as a disciplinary concept, and how it is defined within the law. That question was followed by one from a faculty member concerned with the misappropriation or misrepresentation of his lectures in the notes students post to course-help sites. I subscribe to what some people might call a “copyleft” position. I also have a better understanding than most people about what exactly copyright does and does not cover. You cannot use copyright law to prevent someone from plagiarizing your ideas, and you are going to have a very difficult time using copyright law to stop a student from disseminating her independently-authored account of what took place in your lecture, i.e., her notes. That does not mean, though, that we do not have ethical obligations to respect what scholars in a given field of study have determined is the intellectual property of our colleagues by complying with the discursive conventions that govern attribution and acknowledgment of their work. Similarly, that does not mean we cannot ask our students to respect our intellectual property and the time and effort we put into course design and lectures.

What we definitely should do is consider how we can use disciplinary ethics to promote the responsible creation and use of intellectual property within our disciplines, rather than relying on lawyers and legislators to do that for us. We should also think creatively about how we can use models based on free and open access, rather than enclosure and restriction, to make sure our intellectual work in the classroom is represented fairly and accurately. For example, Dr. Harvey suggested that instructors can appoint a note-taker whom they can trust to represent the material fairly and accurately to keep records for the class. Mr. Beck and Dr. Bobick recommended simply making one’s own notes available to get students to pay attention and stay engaged in class, and to set the record straight as to what was and was not covered. Instructors might also consider using a badge system, similar in principle to the one prototyped at the recent Mozilla Drumbeat Festival, to encourage students to contribute to an official course website or wiki, rather than an unofficial for-profit course-help site, that can become a dedicated and evolving resource for use in other classes.

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